Whether the HSE was justified in refusing access to the applicant's request for her medical files from 1996 to date under section 37(3) of the FOI Act

14 July 2021

Background

In June 2020, the applicant sought access to her medical files from 1996 to the date of her request held by the HSE’s Mental Health Services. In a decision dated 2 November 2020, the HSE refused the request pursuant to section 37(3) of the FOI Act, but offered to make them available to a relevant health professional of her choice in accordance with section 37(4). On 6 November 2020 the applicant sought an internal review of that decision, following which the HSE affirmed its refusal of the request. On 21 December 2020, the applicant sought a review by this Office of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant’s comments in her application for review and to the submissions made by the HSE in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicant's request for her medical files held by the HSE’s Mental Health Services under section 37(3) of the FOI Act.

Preliminary Matters

While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited.

Furthermore, while I note the reasons given by the applicant for wishing to access her records, the Act provides that in deciding whether to grant or refuse a request, any reasons that a requester gives for a request shall be disregarded, except in so far as those reasons reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. This means that in this case, I cannot have regard to the applicant's reasons for seeking access to the records at issue.

Analysis and Findings

Section 37(3) of the FOI Act provides that a public body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. Where it refuses a request under subsection (3), it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).

This Office considers that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide how sensitive information should be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). It is noteworthy that the threshold for meeting the exemption in section 37(3) is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified. Nevertheless, this Office considers that where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the physical or mental health, well-being, or emotional condition of the requester as a result of direct access to the record in question.

It is not in dispute that all of the records at issue are of a medical or psychiatric nature relating to the applicant. In its submission to this Office, the HSE stated that its decision was made in consultation with the applicant’s consultant. While the applicant stated that she has not seen the consultant in three years, the consultant has overall responsibility for the applicant’s care and the applicant continues to attend the HSE’s Mental Health Services. During the course of this review, the consultant indicated that it remains her opinion that, given the level of insight into her illness in the past, the disclosure of the records directly to the applicant would have the potential to cause the applicant to be distressed. She remains of the view that access to the records should be granted via relevant health professionals. I am satisfied that it was appropriate for the HSE to have regard to the consultant’s views on the matter.

Based on the HSE's submission and the consultant’s opinion on the matter, I am satisfied that the HSE was justified in refusing access to the records sought by the applicant under section 37(3) and I note that it has complied with the provisions of section 37(4) by offering the applicant an opportunity to nominate an appropriate health professional to access the records concerned on her behalf. 

I note the applicant’s comments in her application for review regarding the types of health professionals to whom the HSE advised access may be offered under section 37(4) of the FOI Act. In its decision letters, the HSE was simply providing details of the types of health professionals to whom access to records may be granted. Under section 37(4) provides for access to be offered to a health professional who has “expertise in relation to the subject matter of the record”.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby affirm the decision of the HSE to refuse the applicant's request for her medical files from 1996 to the date of her request held by the HSE’s Mental Health Services under section 37(3) of the Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal. 

 

Stephen Rafferty

Senior Investigator